Are you or your loved one facing the prospect of moving to a long-term care facility? This can be a frightening time for both loved ones and the elder. It is important to be familiar with the rights and responsibilities these facilities have towards our senior citizens. A failure to appreciate these rights and a failure to report instances of wrongdoing has led to mismanagement by the facilities in many cases. Knowing your rights and the steps for enforcing those rights can help ease the fear and empower seniors during this life transition.
The first step in the process is to carefully research the options for long term care and the different facilities available. This can be likened to choosing a college. Its important for the elder to be comfortable with the facility as much as possible and for there to be a “match”. Hand in hand with choosing a facility is doing a little bit of research to find out if the facility is a good one or does the facility have a history of regulatory violations. The more violations a facility has the more likely it is that you or your loved one will not receive the quality care that is deserved. Regulatory violations by long term care facilities and nursing homes are often published in local newspapers. Another great resource is medicare.gov which allows you to search nursing homes, hospice care and long term care hospitals in a geographic area, compare ratings for each facility and review complaints and regulatory violations. Another important consideration is the financing end. Below are some of the important questions to ask when it comes to financing long term care:
- Does the elder have a long-term care insurance policy that they can tap into?
- Will the elder spend their own assets to pay for care or will the elder be applying for Medicaid?
- Does the elder meet the requirements for Medicaid?
- If Medicaid is going to be used, does the facility participate in the Medicaid program?
The second step after choosing a facility is to carefully review the admission contract before signing it. The admission contract should clearly state the costs of care, the services covered by those costs (i.e. social activities, medical care, daily meals), the legal responsibilities of the patient, the patient’s rights under federal and state law, and clearly describe the grievance procedures. Be wary of any clause in an admission contract that waives the liability of the facility, requires a responsible party to guarantee payment as a condition to acceptance of the patient, clauses that require the patient to consent to certain medical procedures as a condition of acceptance, clauses that restrict visiting hours or contact between the patient and the patient’s loved ones, or clauses that require all of the patient’s income be automatically turned over to the facility.
Third, while the patient is in the care of the facility, the patient and the patient’s loved ones should be aware of the rights the patient has under federal and state law and enforce these rights in the event there is a violation, either through a state grievance procedure or the in-house grievance procedure established by the facility in its admission contract. The federal Nursing Home Reform Act contains a patient’s Bill of Rights (see 42 U.S.C. §1395r(c)) that guarantees the patient certain rights and requires facilities to adhere to minimum guidelines of care. In addition, Virginia Code §32.1-138 lists out the patient’s rights when residing in a nursing home facility located in the State of Virginia. It is important to be familiar with these guidelines and regulations and to be vigilant to spot any violations. If there has been a violation, such violations should immediately be reported using the grievance procedure laid out in the admission contract or by reporting it to the Virginia Department of Health Complaint Unit.
Fourth, it is important to have a robust Advance Medical Directive in place where the elder appoints a loved one or trusted individual who lives nearby the facility or close enough to make regular and routine visits. Such a person can be a healthcare advocate for the elder while the elder is a resident in a facility. It is shown that facilities are less likely to violate the rights of a senior citizen in their care if the facility knows that the senior’s family or loved ones are routinely involved with the senior, make frequent visits, are quick to point out to the facility’s administration the needs of their loved one or violations by the facility of the loved one’s rights and are active in advocating for their care. An Advance Medical Directive is helpful to this end since it appoints a family member or loved one who can serve in this capacity as the elder’s care advocate while the elder is resident in a Virginia facility.
The laws and regulations governing nursing homes and long-term care facilities are complex. If you or your loved one is facing admissions to one of these facilities or if you or your loved one has had their rights violated, it is important to meet with and obtain the advice of an experienced and competent elder law attorney who can guide you through the legal remedies at hand to make sure you or your loved one receives the care you and/or they deserve.
 Robert B. Fleming and Lisa Nachmias Davis, Elder Law Answer Book 4th Edition (New York: Wolters Kluwer, 2017), 13-40.